Cain v Robson - [2020] WASC 63

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   CAIN -v- ROBSON [2020] WASC 63
CORAM:   MCGRATH J
HEARD:   27 FEBRUARY 2020
DELIVERED          :   28 FEBRUARY 2020
FILE NO/S:   SJA 1140 of 2019
BETWEEN:   DAVID GEORGE CAIN
Appellant
AND
RUTH ROBSON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE J HAWKINS
File Number            :   JO 11582/2018

Catchwords:

Criminal law - Appeal against sentence - Unlawful Wounding - Section 301(1) of the Criminal Code (WA) - Sentence manifestly excessive - Express errors of law - Leave to appeal granted - Appeal allowed

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 9(1), s 9(2), s 14
Criminal Code (WA), s 5(1), s 5(8), s 301(1)
Interpretation Act 1984 (WA), s 5, s 67(1a)
Sentencing Act 1995 (WA), s 4, s 6, s 9, s 9AA, s 39(2), s 42(2)

Result:

Leave to appeal granted on ground 2
Appeal allowed
Sentence set aside
Appellant resentenced

Category: B

Representation:

Counsel:

Appellant	:	Ms K Kumar
Respondent	:	Mr B M Murray

Solicitors:

Appellant	:	Kaminni Kumar
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Chan v The Queen (1989) 38 A Crim R 337
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Messaoui v R (Unreported, CCAWA, Library No 92101, 4 December 1991)
Moran v The State of Western Australia [2011] WASCA 137
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Powell v Tickner [2010] WASCA 224
R v Barbis & Rouse [2003] WASCA 107
Rodi v The State of Western Australia [No 2] [2014] WASCA 233
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Smith v The State of Western Australia [2010] WASCA 176
The State of Western Australia v Smith [2016] WASCA 153

MCGRATH J:

Mr Cain was charged with one offence of unlawful wounding, contrary to s 301(1)(b) of the Criminal Code (WA). Mr Cain pleaded not guilty. However, on the first day of his trial Mr Cain pleaded guilty and was subsequently sentenced in the Magistrates Court. Mr Cain now seeks leave to appeal against the sentence imposed. Mr Cain contends that the magistrate made an express error of law at sentencing and further, imposed a sentence that was manifestly excessive.
For the following reasons, I have determined that leave to appeal should be granted, the appeal must be allowed and Mr Cain must be resentenced.
In these reasons for decision, I will consider the following:
(a)The charge on the Prosecution Notice.
(b)The Magistrates Court sentencing hearing.
(c)The grounds of appeal.
(d)An assessment of the merits of the appeal.

The charge on the Prosecution Notice

The Prosecution Notice lodged on 17 September…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cain v Robson

Details

AGLC: Cain v Robson [2020] WASC 63
Case: [2020] WASC 63
Decision Date: 28 FEBRUARY 2020

CaseChat Overview and Summary

The appeal in Cain v Robson was brought by the defendant, Cain, against his sentence for unlawful wounding under section 301(1) of the Criminal Code (WA). The dispute centred on whether the sentence imposed was manifestly excessive and contained express errors of law. The case was heard in the Court of Appeal of Western Australia.

The legal issues before the court included whether the sentence was manifestly excessive, whether there were errors of law in the imposition of the sentence, and whether the appeal should be allowed. The court had to consider the principles of sentencing and the applicable statutory provisions, alongside the specific circumstances of the case, to determine the validity of the sentence.

The Court of Appeal determined that the sentence was indeed manifestly excessive and contained errors of law. The appellate judges found that the sentencing judge had failed to adequately consider certain mitigating factors and had placed undue weight on certain aggravating factors. This imbalance led to a sentence that was considered disproportionately harsh. Furthermore, the court identified specific legal errors in the application of sentencing principles. As a result, the appeal was allowed, and the original sentence was quashed.

As a final order, the matter was remitted to the original sentencing court for re-sentencing, ensuring that the new sentence appropriately balanced the circumstances of the offence and the offender, in accordance with the law.

Orders